While dealing with a matter pertaining to the recovery of a maintenance amount, the Allahabad High Court in a significant judgment titled Mohammad Usman vs State of UP in Application u/s 482 No. 8718 of 2021 delivered on 31.8.2021 has observed that sentencing is just a way to recover the arrears and is not a mode to discharge the liability. In this case, the OP2 wife had filed an application under Section 125 CrPC and an ex parte order was granted in her favour with a direction to the applicant husband to pay a monthly allowance of Rs 1000 for life and Rs 500 to children till they attain majority. It was made clear that the limitation period of 1 year under Section 125(3) CrPC does not fetter right to claim enforcement under Section 128.
To start with, this learned judgment authored by a single Bench of Allahabad High Court comprising of Justice Dr Yogendra Kumar Srivastava puts forth in para 2 that, “The present application under section 482 of the Code of Criminal Procedure, 1973 (the Code) has been filed seeking to quash the proceedings of Execution Case No. 47 of 2018 (Shahar Bano Vs. Usman alias Bhai Lal) under Section 128 of the Code, Police Station-Sarai Mamrej, District Allahabad along with orders dated 13.02.2021/15.02.2021 passed by learned Additional Principal Judge, Family Court, Court No.-1, Allahabad.”
While dwelling on the facts, the Bench then envisages in para 3 that, “The facts of the case as per the pleadings in the affidavit are to the effect that an application under section 125 of the Code filed by the opposite party no. 2 was allowed by means of an ex parte order dated 06.08.2015 with a direction to make payment of a monthly allowance of Rs. 1,000/- for life to the opposite party no. 2, and monthly allowance of Rs. 500/- each to the opposite party nos. 3, 4, 5 and 6 till they attain majority.”
Needless to say, the Bench then enunciates in para 4 that, “Proceedings for enforcement of the aforesaid order of maintenance under section 128 of the Code were initiated pursuant to an application dated 14.9.2018 registered as Execution Case No. 47/2018 wherein a prayer was made for recovery of the amount.”
To put things in perspective, the Bench then states in para 5 that, “The order sheet of the execution proceedings, which has been placed on record, indicates that pursuant to a recovery warrant issued in the execution proceedings, the applicant appeared before the court and filed an application expressing his willingness to deposit fifty per cent of the amount due and pursuant thereto an order dated 13.12.2019 was passed directing that fifty per cent of the amount due i.e. Rs. 77,000/- be deposited and the remaining amount be deposited in installments. It appears that in respect of recovery of the balance amount, an order dated 13.02.2021/15.02.2021 was subsequently passed. It is at this stage, that the present application under section 482 of the Code has been filed seeking quashing of the order dated 13.02.2021/15.02/2021 and also the entire proceedings of the Execution Case.”
As it turned out, the Bench then discloses in para 6 that, “The principle ground which has been sought to be canvassed on behalf of the applicant to assail the proceedings of the Execution Case are that the order under section 125 (1) having been passed on 06.08.2015, the proceedings for enforcement of the order initiated under section 128 of the Code pursuant to the application dated 14.09.2018 would be barred by limitation being beyond the period of one year from the date of order under section 125(1). In this regard, he has sought to place reliance upon the proviso to sub-section (3) of section 125.”
Of course, the Bench then notes in para 8 that, “The ambit and scope of the powers to be exercised under Section 125(3) of the Code and the question as to whether the limitation prescribed under proviso to Section 125(3) would be applicable in respect of proceedings under Section 128 of the Code, fall for consideration in the present case.”
As we see, the Bench observes in para 12 that, “The legal position that the provisions under Chapter IX of the Code are in the nature of a beneficent legislation and the liability to pay maintenance under Section 125 of the Code is a continuing one, was reiterated in recent decisions of this Court in Alakhram v. State of U.P. and Another 2021 (114) ACC 750 and Mithilesh Maurya v. State of U.P. and Another 2021 (114) ACC 761.”
While citing a relevant case law, the Bench then observes in para 13 that, “The distinction between the mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other, in the context of the provisions under Sections 125(3) and 128 of the Code, fell for consideration in the case of Smt. Kuldip Kaur v. Surinder Singh And Another (1989) 1 SCC 405, and it was held that sentencing a person to jail as per terms of Sections 125(3) of the Code is a ‘mode of enforcement’ and not ‘mode of satisfaction’ of the liability, which can be satisfied only by making actual payment of the arrears. The observations made in the judgement with regard to the scope of the powers to be exercised under Sections 125(3) and 128 of the Code, are being extracted below:-“5. The scheme of the provisions embodies in Chapter IX of the Code comprising of Sections 125 to 128 which constitutes a complete code in itself requires to be comprehended. It deals with three questions, viz.: (1) adjudication as regards the liability to pay monthly allowance to the neglected wife and child etc., (2) the execution of the order on recovery of monthly allowance, and (3) the mode of execution of an order for monthly allowance. Now, one of the modes for enforcing the order of maintenance allowance with a view to effect recovery thereof is to impose a sentence of jail on the person liable to pay the monthly allowances.
- A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a ‘mode of enforcement’. It is not a ‘mode of satisfaction’ of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realised that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance ‘without sufficient cause’ to comply with the order. It would indeed be strange to hold that a person who ‘without reasonable cause’ refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears. Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of providing them with the funds, no useful purpose would be served by sending the husband to jail. Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears. It is not a mode of discharging liability. The section does not say so. The Parliament in its wisdom has not said so. Common sense does not support such a construction. From where does the Court draw inspiration for persuading itself that the liability arising under the order for maintenance would stand discharged upon an effort being made to recover it? The order for monthly allowance can be discharged only upon the monthly allowance being recovered. The liability cannot be taken to have been by sending the person liable to pay the monthly allowance, to jail. At the cost of repetition it may be stated that it is only a mode or method of recovery and not a substitute for recovery. No other view is possible. …””
Be it noted, the Bench then envisages in para 26 that, “The first proviso to Section 125(3) of the Code cannot be construed to be a fetter on the entitlement of the claimant to receive arrears of maintenance beyond a period of one year preceding the date of filing of the application under Section 125(3) nor can it be held to extinguish or limit the entitlement to claim maintenance granted by the court under Section 125.” Most significantly, the Bench then stipulates in para 27 that, “Section 128 of the Code provides for enforcement of the order of maintenance against the person against whom the order of maintenance has been made. The enforcement of the order of maintenance under Section 128 can only be made upon the liability being satisfied by making actual payment of the amount of maintenance which is due. The entitlement to claim enforcement of the order of maintenance under Section 128 by seeking discharge of the liability as per terms of the order of maintenance granted under Section 125, therefore cannot be held to be extinguished in terms of the one year limitation prescribed under the first proviso to Section 125(3).” Adding more to it, the Bench then specifies in para 28 that, “Even otherwise, a plain reading of the first proviso to Section 125(3) would show that the limitation of making an application within a period of one year from the date on which it becomes due would only be applicable in case of issuance of a warrant for recovery of any amount due under the section, and it does not contain any restriction on a claim to be made for enforcing the order of maintenance for which the provision is made under Section 128.” It is worth noting that the Bench then maintains in para 37 that, “It would be the duty of the Court while construing a proviso to give it a meaning so as to bring it within the ambit and purview of the section itself, by reading it in a manner so as to confine it to the section which precedes it.” Furthermore, the Bench then notes in para 38 that, “Applying the aforesaid principles of statutory construction, the proviso to sub-section (3) of Section 125 would have to be held to be confined to the section which precedes it. The limitation of one year provided in terms thereof would have to be read in relation to issuance of a warrant for recovery of an amount due in terms of an order of maintenance passed under sub-section (1) of Section 125. The aforesaid limitation of one year under the proviso to Section 125 (3) cannot be held to travel beyond or stretch to an extent so as to being within its ambit the powers relating to enforcement of an order of maintenance under Section 128 of the Code.” As a corollary, the Bench then holds in para 39 that, “It may, therefore, be deduced that the scope of Section 125(3) and 128 of the Code being different and the first proviso to Section 125(3) creating an interdict only on issuance of warrant for recovery under Section 125(3), the said period of limitation of one year cannot be held to create a fetter on the right to claim enforcement under Section 128.” In view of the aforesaid, the Bench then holds in para 40 that, “The proceeding for enforcement of the order under Section 128, therefore, cannot be assailed on the ground that the same would be barred by limitation as provided under the proviso to Section 125(3) of the Code.” Finally, the Bench then concludes by holding in para 41 that, “This being the only ground on the basis of which the proceedings of the execution case have been sought to be challenged, the present application under Section 482 of the Code, thus fails and is accordingly dismissed.” In sum, the Allahabad High Court has not left even an iota of doubt to make it absolutely clear that in maintenance proceedings, the limitation period of one year under Section 125(3) CrPC does not fetter right to claim enforcement under Section 128 of CrPC. All the lower courts must definitely always abide by what the Allahabad High Court has held in this notable case so clearly, cogently and convincingly!</code></pre></li>
Sanjeev Sirohi
